Social Media and Workers' Compensation: What Gets Posted Can Hurt You

Defense attorneys and adjusters (and even state attorneys) are using social
media sites more and more to support claims of fraud against injured workers.
Facebook, Twitter, Instagram, and even YouTube, as well as numerous other
sites that have popped up, have become treasure troves of information
for insurance companies. Whether the posts are from those of us that just
love to share family/friend photos and comments or the more extreme social
posters that can’t help but to show off how cool they are, use of
social media by injured workers becomes an invitation for trouble in the
work comp case.

First, I go on the record with the statement that anyone lying about a
work injury or intentionally exaggerating their injury should be caught
and punished accordingly. So, this post is not directed at anyone falling
in these categories. But, through the years, I’ve watched as very
innocent and legitimately injured hard working people are caught up in
the fraud “witch” hunt. For those of you who have had the
misfortune to be injured on the job, and especially if your doctor has
taken you out of work while you recover, this post is for you.

There exists in our society a systemic bias against anyone that reports
an injury on the job. It truly seems that anyone with a
work comp claim is automatically assumed by employers, doctors, adjusters, case managers,
and even the public at large to be suspect. Did they really get hurt?
Did anyone witness it? Was it really on the job? Is it really as bad as
they say it is? For the thousands and thousands of very legitimately injured
workers, these automatically programmed (and most often unwarranted) questions
from the rest of us make the lives of injured workers difficult. Employers
may consider firing them, doctors don’t trust reported complaints
of pain, adjusters feel overly justified in denying benefits, and co-workers
mock those on “light duty”. And, as silly as it may sound,
posting a photo of yourself smiling at a restaurant with your friends
on your Facebook page may be used as proof you’re not hurt as bad
as you say you are.

Consider the following excerpt copied from an insurance journal article:

Andrew Matthews, assistant vice president with third-party administrator
Avizent, says that his company actually has a full-time employee who monitors
social media websites, trolling for information. “It’s really
amazing what people put on Facebook, and then brag about it,” Matthews
says. “You’re looking for an indication of activity they’re
talking about that they’re not supposed to be doing.” And
it doesn’t just have to be a photo of the supposedly injured worker
snowboarding on a half pipe. If someone writes on his wall that he’s
going to be moving this weekend, that’s a good time to do some surveillance,”
says one fraud expert. Private investigators say that getting behind someone’s
wall can be accomplished by setting up a Facebook page and then getting
others to friend you, including someone you’re monitoring.

The above point of view from the insurance industry is understandable.
An employer or insurance company should not being paying for fraudulent
claims. And, as long as the focus remains on using clear evidence to refute
a worker’s claim, the use of social media is a legitimate and helpful
tool toward that end. But, for less clear and more equivocal “evidence”,
let’s remember that the interpretation of a posted photo or comment
is influenced by the mindset of the viewer. In other words, we often see
what we expect to see. Consider the following real life examples:

One client, who had an
injury claim, went out to a restaurant/bar with friends one night and posted about
it on social media. The defense attorney reviewed the post and tried to
use that status as evidence that his injury wasn’t as serious as
he claimed and didn’t affect his daily quality of life. The rationale
was that if he could enjoy a night out with friends, then he must not
really be hurt.

If you’re inclined to agree, consider these additional facts. The
worker is a police officer that injured his shoulder taking down a drug
dealer. He is recovering from surgery and goes to physical therapy every
other day. He’s only been cleared by his doctor for light duty jobs
that do not require him to use his injured shoulder/arm/hand. His employer
doesn’t have a position for him until he is released to full duty,
hopefully, in a few more weeks. He has stayed at home so much lately,
he is starting to get cabin fever and is pushing to go back to work early.
His wife and friends have insisted he get out of the house for dinner.
He goes and has a good time, all the while never doing anything outside
the doctor’s restrictions. The photos show him sitting and smiling
with his wife and friends. It doesn’t show his arm sling, or the
bottle of pain pills and muscle relaxers he has to take every four hours,
or him trying to sleeping in a recliner every night because he can’t
lie flat, or him waking up every couple of hours.

Another client posted a photo of a very large buck he killed. This was
posted in response to a friend’s post of the friend’s very
large buck that was killed. The friend killed his buck yesterday. The
client killed his buck last year before the work injury, but this part
isn’t mentioned in the post. The defense attorney neglected to check
the metadata on the photo and thought the hunting was being done this
year against doctor’s advice. The client’s benefits were temporarily
denied pending the clearing up of this misunderstanding (that always takes
longer than it should.)

Behind every posted photo and comment, there is much more information that
can either help or hurt depending on the goal. For our clients, we strongly
recommend against any postings during the life of a work comp claim. While
we have been able to provide reasonable explanations for most of our client’s
misunderstood photos and comments on social media, it is best not to invite
the trouble in the first place.

If you choose to continue with social postings, at a minimum, we recommend
that our clients use the highest privacy setting available so the things
you post are only viewable by close friends and family members. Even so,
you need to remember that there’s no real privacy online. It’s
very likely the insurance company and its attorneys will see what you
have posted, whether they find it on their own, someone shares it with
them or we’re required by the court to provide it to them.

The lesson here is be careful what you say or share, especially on line,
– and in many cases, it may be best not to say anything at all.
The more information you put out in the world, the more likely it’s
going to be used against you.

The information on this website is for general information purposes only.
Nothing on this site should be taken as legal advice for any individual
case or situation. This information is not intended to create, and receipt
or viewing does not constitute, an attorney-client relationship.

x

⚠

Your browser is out of date. To get the full experience of this website,
please update to most recent version.